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Wednesday, 20 April 2011

Appointments to the Supreme Court, or the Assumption of Sumption's Ascension

Published in Halsbury's Law Exchange here.

I was not in favour of the establishment of the Supreme Court, for the simple reason that there was nothing wrong with the old Appellate Committee of the House of Lords. Quite the opposite: it was one of the most esteemed judicial institutions in the world.

Nevertheless, the Supreme Court is permanently with us and it is therefore imperative that we make the best of it. Provided the standard of the actual judgments is maintained - which so far it has been - one can expect the court to enjoy the same global respect as its predecessor.

In fact, in one significant respect at least - the requirement of open justice - the court represents a tangible improvement on its predecessor. Moreover, despite having the same constitutional position as the Appellate Committee, the court has hinted at a greater willingness to assert itself against Strasbourg. At the same time, however, there have been some teething problems, which betray the haste with which the court was established.

First, there has been some thoroughly needless and confusing chopping and changing of the titles of judges. Secondly, the government seemed for a short time under the illusion that the court was nothing more than a department of the Ministry of Justice, which could be freely tinkered with according to the whim of the moment (though I suppose we can put that down to ignorance on the part of the relevant civil servants rather than a fault with the court itself). The third problem, and the subject of this post, concerns the process of appointments to the court.

Traditionally of course the bench has been drawn from the bar. In the lower courts there are two sound (but not necessarily decisive) reasons for this: the need for the judge to make findings of fact and also to determine issues of procedure. Both those roles are part of advocates stock in trade but are not an area of expertise for other legal practitioners. Neither forms part of the Supreme Courts function, however, and therefore the likes of solicitors, employed lawyers or legal academics could in theory have equally suitable experience.

It would be unusual but not entirely unprecedented to appoint candidates directly to the highest court: one of the finest twentieth century law lords, Lord Reid, had never been a judge before joining the House of Lords. Neither had Lord Radcliffe nor Lord Carson.

Perhaps because of those factors, early in the Supreme Court's history a story emerged in the legal press that the well-known barrister Jonathan Sumption QC was to be appointed directly from the bar.

Mr Sumption is one of the country's leading silks, with a towering intellectual reputation. Rumour has it that he was once introduced in court by his opponent as the most intelligent man in England (the third counsel appearing in the case was then introduced as ipso facto not the most intelligent). Before reading for the bar he was a history don at Oxford, and in recent years has found time in addition to running a leading commercial practice to produce a weighty multi-volume history of the Hundred Years War.

Details of What Happened Next are set out in this article from the Times. Apparently Mr Sumption's proposed appointment was strongly opposed by the Court of Appeal judges, on three grounds. First, it was unfair: instead of working his judicial passage as they had, he had enjoyed the much higher income of the bar for much longer. Secondly, if he was permitted to leapfrog all the other court divisions it would be a disincentive for other top practitioners to apply for the bench, as they might hope to do the same. Thirdly, Sumption was obviously untested as a judge, although he had sat at first instance on the odd occasion as a deputy High Court judge.

Some Supreme Court justices also considered that the appointments process might be unlawful, which was expressed in a submission to the Lord Chancellor by Lord Mance. That was seen by some as unfortunate given that Lord Mance is married to Lady Justice Arden, a leading candidate for a Supreme Court appointment herself (both as a leading judge and, being female, a way of making the court more representative).

In the event, Sumption withdrew his candidature, despite having incurred the personal inconvenience of winding down his practice.

It now transpires that Mr Sumption is to be appointed after all. On this occasion it seems he has not found time to clear his desk; instead he has apparently asked for his appointment to be delayed to so he can finish the substantial litigation between two Russian tycoons in which he is instructed. The lucrative nature of that particular brief has not gone unnoticed, and is being cited as another example of Mr Sumption enjoying the money of the bar rather than undertaking the public service of the bench. Perhaps it might be a quid pro quo for Mr Sumption having cleared his desk for nothing last time. Either way, he is scarcely out of pocket if one considers the amount of extra time he has had at the bar compared with other Supreme Court justices.

There are several observations to make about what we might call the assumption of Sumption's ascension. First, although he will not alter the demographic composition of the bench himself, his appointment straight from the bar might be a modern precedent for others who would.

Secondly, if he had been told originally that his application would be successful, only to have it withdrawn, it would not reflect well on those responsible.

Thirdly, missing in all the discussion is the point that when it comes to developing the law, the Court of Appeal is in fact more influential than the Supreme Court, because it hears far more cases. It follows that the very best legal minds ought to spend at least some, if not most, of their judicial careers on the Court of Appeal, unless perhaps they lack the requisite expertise in procedural law (which as a practising barrister Sumption does not).

Fourthly, the controversy should not have happened before and should not be happening now. The process of appointments should have been one of the foremost questions when the Supreme Court was being devised. Issues such as those concerning Sumption should have been identified and resolved before the doors on the old Middlesex Guildhall on Parliament Square were ever opened.

Finally, however, one is relieved to be able to say that Sumption's ability to do the job is beyond question, as one of England's finest legal minds. Therefore, despite the unsatisfactory history of his (so far non-)appointment, no lasting damage to the institution will be caused if and when he finally begins his tenure.

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